Gendered ageism: your legal rights

Analysis out this week from Labour shows the gender pay gap will not close before 2050 for women in their 50s at the current trajectory. Based on ONS figures, it says the gender pay gap is highest for women in their 50s at 11.7% for full-time workers, nearly four times higher than the gap for women in their 30s. Labour says that gap has only closed by 5.1% since 2010. A parallel analysis shows 185,000 more women aged between 50 and 64 have become economically inactive since the start of Covid and real wages have falled by £1K a year since 2010 for women in their 40s and 50s. Amid an increasing focus on the factors that contribute to the gender pay gap for older women, lawyer Karen Holden looks at the different forms gendered ageism takes and what employers and individuals can do to counter it.

Age discrimination is a significant concern in the workplace. It is a form of discrimination where women or men are treated less favourably due to their age. This discrimination can manifest in various ways, including hiring practices, promotion opportunities, pay disparities and biased treatment in the workplace. While age discrimination laws primarily focus on protecting individuals based on their age, it’s important to recognise the intersectionality of age and gender discrimination in these cases.

What does the UK law say?

In the United Kingdom, the Equality Act 2010 prohibits age and gender discrimination in employment. Such protection applies to job applicants, employees, workers and agency workers, apprentices, certain self-employed people and specific groups such as police officers and partners in a business.

Age discrimination can take many forms some obvious, some less so, such as:

• Direct discrimination: such as not hiring or promoting someone because of their age;
• indirect discrimination: for instance, offering paid training only to recent graduates (which effectively leaves out older staff);
• harassment: for example, making offensive jokes or comments about someone’s age;
• victimisation: such as not promoting someone or making them redundant because they show support of another’s complaint of discrimination.
• Prohibited discrimination also covers direct discrimination based on the age of someone else you are associated with (for example, you are not invited to a company event because your partner is deemed too old) or direct discrimination based on your presumed age (for instance, you are not hired for a manager’s position because you look younger).

What does age discrimination in the workplace look like?

Some key considerations regarding age discrimination specifically impacting women include:

1. Recruitment and hiring: Discrimination against women can occur during the recruitment and hiring process. Employers may, for example, make assumptions or hold biases that working mothers are less committed or less capable of fulfilling job responsibilities due to their caregiving responsibilities. Discrimination can manifest as fewer job opportunities, lower starting salaries or biased interview questions. Our advice is to have a transparent conversation about hours/days availability/provisions in place for remote working so that the employer and potential employee can explore the ways these aspects can work.

2. Promotion and career progression: Women often face barriers in career advancement due to age and gender biases. They may be overlooked for promotions, assignments, or development opportunities based on stereotypes that they lack commitment or have limited availability due to their caring responsibilities. Such discrimination hampers their professional growth and can perpetuate gender pay gaps and inequality in the workplace. Women should document their successes and continue to apply for promotions and show employers that they continue to be dedicated to their careers. Age and family status should not be a bar to continued workplace progression.

3. Flexible work arrangements: Discrimination against those with caring responsibilities can also manifest itself in the denial of flexible work arrangements or granting part-time hours but expecting people to deliver a full-time workload. However, it is essential that employees follow these agreed days/hours to ensure employer and employee work together with aligned goals. Open communications around delegation or changes in working patterns should be encouraged so as to ensure a synergy with flexibility and the requirements of the role.

4. Maternity and parental leave: Discrimination can occur around maternity and parental leave, including negative treatment, demotion or loss of job opportunities during or after these periods. Employers must ensure that parents are supported and that their rights to maternity and parental leave are upheld. The laws in these areas are evolving and parents should talk to their employers before , during and after parental leave so the employer is kept informed about how to support their workers.

Avoidance of ageism

Addressing age discrimination against women requires a multi-faceted approach, which includes:

a. Raising awareness: Promoting awareness of the employment rights and the impact of age and gender discrimination can help challenge stereotypes and biases.
b. Policy implementation: Employers should establish policies and procedures that promote equal opportunities for women. This includes providing flexible work arrangements, addressing unconscious biases in recruitment and promotion processes and fostering a supportive and inclusive work culture.
c. Legal protection: Women who experience age discrimination can file complaints under the Equality Act 2010. Seeking legal advice and support can help individuals understand their rights, navigate the legal process and pursue appropriate remedies if discrimination has occurred.
d. Support networks: Creating support networks, mentoring programmes and employee resource groups can provide women with a platform to share experiences, seek guidance and advocate for change.

Employers and employees should seek legal advice and support to ensure they both understand their rights and obligations. Combating age discrimination and challenging age-related stereotypes and biases will contribute to better equality and inclusion which will in turn benefit both employers and employees. For example, experience and maturity are as essential as the benefits young people can bring. And if women who are suffering from menopause leave there will be additional recruitment costs and loss of talent and diversity. With treatment and understanding by employers they can retain these committed and loyal staff members.

Individuals who experience age discrimination can seek remedies and legal protections under UK law. This may include filing a complaint with an employment tribunal, seeking compensation for financial loss and obtaining a court order to stop discriminatory practices.

Employers found guilty of age discrimination can face substantial financial penalties and damage to their reputation. There is no limit to damages on discrimination cases so a claim can be costly.

Seeking advice

The role of the employment lawyer, should you need one, is to offer:

Guidance and assessment: A solicitor can assess the strength of your case and provide an objective analysis of the potential legal options available to you. They can help you understand your rights, evaluate the evidence and determine the best course of action to pursue, whether it involves negotiating with your employer, filing a claim or seeking a resolution through alternative dispute resolution methods.

Legal procedures and documentation: Legal processes can be complex and require adherence to specific procedures and deadlines. A solicitor can guide you through the necessary steps, ensuring that all documentation is correctly prepared, filed and presented. They can help you gather evidence, interview witnesses and build a robust case to support your claims.

Negotiation and settlement: If you choose to negotiate with your employer or participate in settlement discussions, a solicitor can advocate on your behalf. They can provide advice on the fairness of any proposed settlement offers and help you understand the potential implications of accepting or rejecting such offers.

Representation in legal proceedings: In the event that your case proceeds to court or a tribunal, a solicitor can provide representation and advocacy on your behalf. They can present your case, cross-examine witnesses and make legal arguments to support your position. Having a solicitor by your side can increase your chances of presenting a compelling case and achieving a favourable outcome.

Employers should review contracts and policies, document actions carefully and, if taking affirmative action, seek advice. Employees should review the same contracts and policy documents so they are fully aware of their rights and make sure that they do not inadvertently waive the protections in place to protect them.

Protection is productive

It is crucial for employers, policymakers and society as a whole to recognise and address age discrimination against women. By fostering inclusive work environments that value diversity and provide equal opportunities for all employees, we can promote gender equality and empower women to thrive in their careers. By understanding the legislation and promoting inclusive practices, employers and society as a whole, can work towards creating a fair and equal environment that values individuals of all ages.

*Karen Holden is founder of A City Law Firm. 

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